Employers: Is your zero tolerance policy enforceable?

A recent Labour Appeal Court (LAC) judgment demystifies the issues surrounding how far an employer can go to protect itself from employee misconduct with “zero tolerance” policies.

The supermarket, the supervisor, and the undeclared deodorant

A supermarket chain, attempting to curb employee theft in its store, imposed a zero tolerance policy requiring employees, on entering the store, to declare any goods (except those clearly not store property).

1. A supermarket chain, attempting to curb employee theft in its store, imposed a zero tolerance policy requiring employees, on entering the store, to declare any goods (except those clearly not store property).
2. Employer practice was to issue a final written warning to employees who failed to declare goods but were able to produce proof of purchase, and to dismiss those who weren’t able to prove purchase.
3. A security guard found an undeclared deodorant stick worth R11-99 in a supervisor’s handbag when she left the store.
4. At her disciplinary hearing the supervisor admitted breaking the rule but said the deodorant belonged to her and she had forgotten to declare it upon entering the store.  She couldn’t produce proof of purchase but said she expected only a warning for a first offence.
5. She was dismissed and referred the dispute to the CCMA, arguing unsuccessfully that dismissal was not appropriate.
6. On review, the Labour Court set aside the dismissal.
7. On appeal to the Labour Appeal Court, although finding the employee to be “not a good and truthful witness”, confirmed that dismissal was substantively unfair.  “It is difficult”, said the Court, “to appreciate how a single transgression of this rule, except as regards high value goods, is sufficient to warrant dismissal”.  In the circumstances a final written warning would have been the appropriate sanction.

The bottom line

A ‘one size fits all’ approach should not be adopted in cases involving the implementation of zero tolerance policies.

Due regard must be paid to the surrounding circumstances, which acts as a litmus test in determining both the appropriateness of a zero-tolerance policy as a whole, as well as the sanctioned imposed for non-compliance.

Note: The original of this article appears on Ashersons Attorneys website, here.